PART 1 – The Whole System
The VA appeals process is going through its biggest change since the 1980s. In 2017, Congress passed the Veterans Appeals Improvement and Modernization Act. This act takes apart the current appeal system and replaces it with a new process aimed to improve the experience for all involved in the process.
First, let’s recap what the system currently looks like. Ready? Claimant files a claim. The VA regional office, RO, sends VCAA letter. After that, RO mails notice of its decision. Claimant files notice of disagreement. The claimant must file NOD within one year of mailing of rating decision. The claimant has the option of requesting a DRO review, but the claimant must request DRO review within 60 days of VA letter offering it. If the claim is denied, VA mails a statement of the case, SOC. Note, if the VA grants the claim, then you go back to the beginning of this process. The claimant has 60 days to file the Substantive Appeal VA Form 9 from the date of the SOC or a year from the date of the rating decision, whichever is later. Board of Appeals decides the case, appeals to the CAVC within 120 days. Of course, if a claim is granted at any point, then it goes back to the beginning of this cycle, and the appeal process starts all over again. Ugh.
Let’s take a brief look at what stays the same and what is changing. Then we can talk about how the process works.
There will still be a rating decision after every claim is filed. A claimant will still have the opportunity to have a more seasoned adjudicator review the decision in the regional office. The claimant can still appeal to the Board of Veterans’ Appeals. What’s gone? State of the case, gone. VA Form 9, gone. Reopened claims? Not anymore. The need for new and material evidence, gone. DRO decision, gone. What is replacing these? Supplemental claims, relevant evidence, higher level review, one NOD filed directly to the Board of Veterans’ Appeals. The middleman is gone.
In the current system, when a veteran is dissatisfied with a decision and wants to preserve the date of the claim, he has only one route: file an NOD. Forgot to file a necessary document? File an NOD. Missing a piece of evidence? File an NOD. The VA made a mistake of law? File an NOD.
Veterans Appeals Improvement and Modernization Act
Now, when a veteran files a new claim, the VA will issue a rating decision that must contain the following: what issues were decided, summary of evidence considered by the VA, summary of applicable laws and regulations, identification of findings favorable to the claimant, explanation of why claim was denied, explanation of how to get evidence used in making the decision, and identification of criteria that must be satisfied to grant service connection or the next higher level of compensation. After this rating decision, you have one year to take action. You are to appeal for a higher review at the RO, file new evidence or file an NOD to go to the Board of Veterans’ Appeals.
Higher Level Review
You have one year from the initial claim to seek this route. This lane allows for a quality check on the original opinion while still at the VA regional office. Now, you cannot submit additional evidence or request a hearing here. The review is de novo, which is fancy Latin meaning review without giving weight to the prior decision. If the decision is favorable, your original claim date is preserved. If it is unfavorable, you have an option to file a supplemental claim or to file an NOD to appeal to the board.
Welcome to the new evidence lane. You have one year from the date of your decision to file additional evidence. Under the new law, this is now referred to as a supplemental claim. In this lane, you may submit additional evidence that is new and relevant. Upon receipt of your new evidence, VA will attempt to make a decision within 125 days. Your effective date, the day from which the VA will pay your benefits, will be the day you file the first claim.
Once the adjudicator makes a decision, you must ask yourself, are you satisfied with this decision? At this point, you get to choose from the three options again: one, as you’ve already done, you can submit additional evidence within a year and preserve the date of your claim; two, you can request a higher level review; or three, board review lane.
Board Review Lane
This is where you file an NOD and your case moves from the regional office to the Board of Veterans’ Appeals. Here, there will be three lanes to choose from: one, fully developed appeal, a claim that is ready for decision by the BVA and there is no further evidence to submit; two, hearing request with the chance to submit additional evidence; or three, request to submit evidence but not hold a hearing. If the decision is favorable, your original claim date is preserved. If it is unfavorable, you have an option to file a supplemental claim within a year, or you can file an appeal to the Court of Appeals for Veterans Claims. You only have 120 days to file this appeal though.
File an appeal with the CAVC and win, and your original claim date is preserved. If you do not prevail, then you have a year to file a supplemental claim. Should you win after that, you still preserve your original claim date.
PART 2 – Regional Office Appeals
The VA Appeals’ Process is undergoing a complete overhaul. Understanding these changes will be important for you to know best to navigate your claim through the system.
In our first video, we gave an overview of the whole system. In this view, we’re going to focus on the new appeal process that takes places at the regional office, known as the RO where you file your claim. This is the new layout for the VA Appeals System. Once an initial decision is reached, the veteran has three options for keeping the claim going.
The first option is to file a supplemental claim with new and relevant evidence. The second option is to ask for higher level review. Lastly, you can file a NOD to go direct to the Board of Veterans Appeals, also known as the BVA. Let’s start from the beginning.
Filing a claim
When you file a claim, the VA has a duty to assist you to win your claim. This duty could mean the VA must go to get service records, medical records and social security records. Sometimes the duty to assist includes getting the veteran a C&P exam. The VA’s goal it to issue a rating decision within 125 days. Although similar to the way the rating decisions used to be laid out, now it must include the following:
- Identification of the issues decided.
- Summary of evidence considered by the VA.
- Summary of applicable laws.
- Identification of findings favorable to the claimant.
The VA is then bound by these favorable findings throughout the adjudication appeal. Absent clear and convincing evidence to the contrary. If denied, identification of elements leading to denial.
Explanation of how to obtain or access evidence used in making the decision and identification of criteria that must be satisfied to grant service connection or the next higher level of compensation.
Once an initial decision is issued, a veteran can hire an attorney or agent. It used to be that a veteran had to file an NOD first, but now a veteran can hire and advocate and the advocate can help decide what way to move the case forward. If you disagree with the decision, then you have three choices to move forward. Those options again are:
- File supplemental claim.
- Higher level review at the RO or NOD to the BVA.
(The veteran has one year to enter his claim into one of these lanes if he wants to continue his case.
Let’s look at the supplemental claim. To file a supplemental claim, the veteran must submit new and relevant evidence. New and relevant evidence replaces the current new and material evidence standard. Relevant is defined as evidence that tends to prove or disprove a matter in issue. Importantly, this new standard is lower than the old new and material evidence standard. Remember, the supplemental claim must be filed within one year the decision. The main benefit of this lane, is that it allows the veteran to file new evidence whereas higher review does not. If the claim is again denied, then the veteran still has all three options going forward.
Another supplemental claim, the higher level review or an appeal to the Board of Veterans’ Appeal. The next option is higher level review. Within one year of the decision, a claimant can request higher level review. You can request it to be at the same RO or a different RO. No new evidence may be submitted. Review is de Novo, which means the new decision maker is not bound by what the old one decided. Notice of the higher level review decision must include a statement indicating whether evidence was submitted and not reviewed, and the options for having that evidence reviewed.
An important take-away with this lane is that the decision maker will not consider evidence that was not before the adjudicator that may the first decision. If you submit new evidence, then you will most likely have to have it considered through a supplemental claim if you want it considered again in the RO. If you disagree here, then you can file another supplemental claim or make an appeal to the BVA, which is the third and final choice in the new VA Appeals’ Process.
Board of Veterans Appeals
The Board is the last stop for an appeal in the VA system. To go to the BVA, you file a notice of disagreement AKA the NOD within one year of the decision. It used to be that the veteran had to file an NOD. Get another decision from the RO called the statement of the case and then file a subsequent appeal. Now, the NOD takes you straight to the BVA. The NOD must be filed directly with the BVA.
There are certain requirements for the NOD. It must be in writing and identify the specific issues with which the veteran disagrees. It must be on the VA’s specified form. The veteran can request a hearing before the BVA and/or submit additional evidence with the NOD or, they can request a review without a hearing or additional evidence. The VA is required to develop a policy to allow for modification of the NOD after it has been filed.
Lastly, it is important to understand how this new program protects the effective date of a potential award. The effective date is the date from which the VA will pay benefits. Usually, it is the date of the last re-opened claim. With the new system, as long as you choose one of the three lanes within a year, then your effective date of any claim granted should be the date of the claim you filed at the beginning.